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Can You Fire an Employee Based on His Friends' Facebook Comments?

Eric Meyer is a partner in Dilworth Paxson’s Labor & Employment Department, chair of the #SocialMedia Practice Group and co-chair of the firm’s pro bono committee.

Here’s a question: Can you fire an employee based on his friends’ Facebook comments?

Well, it depends.

Here is the genesis of this article.

An employee is fired because of racist comments made by his Facebook “friends.”

Earlier this month,
a Fox affiliate in Atlanta reported, a local man lost his job after his employer learned about a conversation he had with friends on his Facebook page. It began when the employee, who is white, posted to his Facebook page a picture he had taken of his black co-worker’s 3-year-old son. After he posted the photo, his Facebook friends commented on his post with derogatory and racist comments about the little boy.
Gawker has NSFW (not safe for work) screenshots here.

According to the
Gawker article, the employee made one comment—calling the little boy
“feral”—which he insists he did not intend as racist. But, more importantly—at least for purposes of this article—it does not appear that the employee did anything to discourage his Facebook friends’ behavior (such as deleting offensive comments, reprimanding his friends or otherwise discouraging people from commenting on the picture).

The employer eventually learned of the offensive comments and terminated the employee. (Although the
Gawker article indicates that he may have been fired earlier for reasons unrelated to Facebook). Either way, the company subsequently issued a statement in which it denounced the employee’s decision to post the photo and the offensive comments that ensued.

Was it legal for the company to fire the employee?

Probably.

Assuming that the man who posted the picture was an at-willemployee, then, with limited exceptions, he can be fired for any reason or no reason at all. (Similarly, he was free to resign at any time). Thus, regardless of whether he was fired for his Facebook post, his friends’ comments or another reason altogether, what the company did was probably legal.

Does that mean that you can or should fire an employee for something one of his Facebook friends posts?

First note that “can” and “should” are two different matters. Let’s start with the former.

Can you fire him? It depends. If the employee has an employment agreement, defer to the agreement. Otherwise, it could come down to the substance of the comments and the identities of the Facebook friends. For example, the
National Labor Relations Act (NLRA) may apply. The act applies in most private workplace settings (regardless of whether you have a union). It allows employees to discuss workplace conditions such as wages or how much they like (or dislike) their supervisors, without fear of repercussion.

To be clear, the NLRA would not apply in the situation described above. However, if instead of posting a picture of a co-worker’s child, the Atlanta employee had posted a picture of the office, and co-workers subsequently commented critically about the employer, then the company could not lawfully fire the employee for his post.

But, let’s take the NLRA out of the equation.
Should you fire him?

Maybe.

But avoid taking a knee-jerk approach. Instead, consider the following prophylactic steps:

Get the employee’s side of the story.

Ask the employee if he or she has seen the comments from the friends. (Given that Facebook users can choose to receive notifications when friends comment on their posts, you should be skeptical if the employee claims not to have known about the comments).

Did the employee “like” the offensive comments? Yes, I realize that a Facebook “like” isn’t necessarily an endorsement. But, it may reflect poor judgment.

Consider the substance of the conversation. Are we talking about hate speech? Drug references? Or is it a heated conversation about a sports rivalry that went a little too far and included some profanity? In which case, we’re all human, and counseling may be sufficient.

Find out what steps, if any, the employee took to address the situation. While a Facebook user can take some preventive steps to deter offensive comments on his or her page, a perfect firewall is expecting too much. So, consider whether the employee responded promptly and reasonably.

Ultimately, as the person tasked with addressing this sort of social media activity, try to remain objective, reasonable and consistent. Imagine what would happen if the Facebook comments (and the company’s response) were reported above the fold on the front page of the local newspaper. Or, worse yet, became another viral story on social media.